Man says inaccurate background check caused him to lose job offer

HUNTINGTON – A man is suing Energy Future Holdings Corporation after he claims it performed an inaccurate background check and caused a job offer to be rescinded.

Luminant Mining Company, LLC, and HireRight Solutions, Inc., were also named as defendants in the suit.

On May 30, 2003, Stephen S. Drew completed a deferred sentence stemming from a criminal charge in Rosebud County, Mont., which was entered by the Rosebud County District Court, according to a complaint filed Dec. 14 in the United States District Court for the Southern District of West Virginia, Huntington Division.

Drew claims pursuant to Montana Code of Criminal Procedure regarding dismissal after deferred imposition, the Court ordered his plea stricken and dismissed the charges that were lodged against him and all information regarding the charge was to be considered confidential and may only be obtained by a court order for good cause.

In January, Drew applied for a job with the defendants and on Jan. 24, he participated in a telephone interview. He later completed a second in-person interview, according to the suit.

Drew claims on Feb. 24, he received a job offer while he was in West Virginia by telephone from the defendants, consisting of $61,500 annual pay, plus benefits and where he would hold the job title of Senior Planning Analyst, with an effective date of March 12.

On March 2, Drew received a Federal Express package from Kathie Hemphill, an employee of the defendants, which consisted of an offer of employment letter signed by Eugene Holub, the supervisor of mine planning at Luminant; a benefits summary for new employees; drug testing instructions; and two consumer disclosure authorization forms for Energy Future Holdings, its subsidiaries and its designated agents and representatives, according to the suit.

Drew claims in the offer of employment letter, he was informed that the defendants’ offer was contingent upon completion of a satisfactory background check and drug screen.

On March 5, at the defendants’ instruction, Drew reported to the LabCorp facility in Hurricane for the required drug screen, and returned the signed consumer disclosure authorizations forms to Hemphill by facsimile, according to the suit.

Drew claims on March 6 he received a telephone call from an Energy Future Holdings employee who identified herself as Adelade, who informed him that the offer was rescinded because a 2001 criminal conviction appeared on his background check.

During the telephone call, Drew refuted the criminal conviction and stated that the information was erroneous, according to the suit.

Drew claims on March 28, he contacted the Clerk of the Rosebud County District Court and was told that on March 12, the court had provided the defendants with a facsimile that stated that no information had been found regarding Drew’s conviction, so Drew emailed Hemphill to let her know that the court had sent the facsimile.

On April 5, Drew received a call from an employee of the defendants known as Jacobsen, who indicated that he was in possession of a sentencing order regarding Drew’s criminal conviction. However, when Drew informed the employee that the information was incorrect and that there was no criminal conviction entered against him, the employee said that unless he could provide proof, the employment decision would not be reconsidered, according to the suit.

Drew claims on April 9, he provided the defendants with the Rosebud County court order that sealed his record and dismissed the charges against him and also requested Energy Future Holdings to provide him copies of the credit reports and background check that had been obtained. However, Energy Future Holdings refused to provide Drew with a copy of their background investigation, he says.

On April 13, HireRight provided Drew with a copy of his report, which now showed that there was no court record found regarding any criminal felony or misdemeanor conviction in Rosebud County, according to the suit.

Drew claims on April 18, he received an email from Jacobsen stating that although Drew provided documentation that provided he did not have a criminal conviction, the conviction came up in the initial background check and the defendants would have to rely on that, so the offer of employment would not be reinstated.

The defendants violated the Fair Credit Reporting Act, which caused Drew damages, according to the suit.

Drew claims he suffered loss of employment, damage to his reputation, embarrassment, humiliation and other emotional and mental distress.

As part of the suit, Drew is suing on behalf of himself and on behalf of a proposed class, according to the suit.

Drew is seeking compensatory and punitive damages. He is being represented by John W. Barrett.

United States District Court Southern District of West Virginia, Huntington Division: 3:12-cv-9022

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